DHARMADAS BERA Vs. BHUSAN CHANDRA MAITY

JUDGEMENT

(1.) This Rule is directed against an order of a first class Magistrate dropping proceedings under section 147, Cr. P. C. The petitioner, who was the first party in the proceedings, asks that the order concerned be set aside. The first party's case was that a road which passed through C. S. Plot 428, of Mouza Chatra, was open to the use of himself and the general public but that the second party in Jaistha last obstructed the road by putting a bamboo fencing across it. The first party protested at this but he was threatened with assault. It was alleged that there was a dispute likely to cause the breach of the peace between the parties. The defence of the second party was that there was no likelihood of any breach of the peace, because there was no pathway along C. S. Plot No. 428 which could be used by the first party.

(2.) It appears that the first party examined himself and 5 other witnesses. The second party also adduced oral evidence. According to the second party, there was no likelihood of any breach of the peace. The learned Magistrate having considered the evidence came to the conclusion that there was no likelihood of any breach of the peace and accordingly he ordered the proceedings under section 147, Cr. P.C. to be dropped.

(3.) Mr. S.S. Mukherjee on behalf of the first party has urged that the learned Magistrate should have gone into the merits of the evidence called and that it was not open to him to consider the question whether there was any likelihood of a breach of the peace. As the learned Magistrate was of the view that there was no likelihood of a breach of the peace, he had, in our view, jurisdiction to drop the proceedings. The first party, if so advised, can take any other proceeding if any right of his in respect of the use of the alleged passage can be established to have been infringed.